Drug Testing of School Bus Drivers.
Practice point: A driver who refuses to take a drug test will be removed immediately from active duty for at least one year and will not return to duty until passing a drug test, pursuant to Administrative Code § 17-610[c].
Case: Matter of Gomez v. New York City Dept. of Educ., NY Slip Op 03956 (1st Dept. 2008)
May 15, 2008
Remedies.
Practice point: When a contract for the sale of real property contains a clause specifically setting forth the remedies available to the buyer if the seller is unable to satisfy a stated condition, fundamental rules of contract construction and enforcement require that the buyer's remedies are limited to those expressly provided in the sale contract.
Case: Gindi v Intertrade Internationale Ltd., NY Slip Op 03952 (1st Dept. 2008)
Facts: Paragraph 3 of the rider to the contract of sale provided, in pertinent part, that "[i]f for any reason, except for seller's willful default, the seller shall be unable to convey good and marketable title, subject to and in accordance with this Contract, then the sole obligation of the seller shall be to refund to the purchaser the deposit made hereunder and to reimburse the purchaser for the net cost of title examination." (emphasis added).
There was no evidence of a willful default on the part of defendant, and so plaintiff was not entitled to specific performance of the contract of sale.
Practice point: When a contract for the sale of real property contains a clause specifically setting forth the remedies available to the buyer if the seller is unable to satisfy a stated condition, fundamental rules of contract construction and enforcement require that the buyer's remedies are limited to those expressly provided in the sale contract.
Case: Gindi v Intertrade Internationale Ltd., NY Slip Op 03952 (1st Dept. 2008)
Facts: Paragraph 3 of the rider to the contract of sale provided, in pertinent part, that "[i]f for any reason, except for seller's willful default, the seller shall be unable to convey good and marketable title, subject to and in accordance with this Contract, then the sole obligation of the seller shall be to refund to the purchaser the deposit made hereunder and to reimburse the purchaser for the net cost of title examination." (emphasis added).
There was no evidence of a willful default on the part of defendant, and so plaintiff was not entitled to specific performance of the contract of sale.
May 14, 2008
May 13, 2008
Ready, willing and able to buy.
Practice point: While a real estate broker will have earned a commission by producing a purchaser who is ready, willing and able to purchase at the seller's terms, the mere signing of a contract does not establish that the buyer is financially able to complete the transaction and meet the purchase price.
Case: F. Richard Wolff & Son, Inc. v. Tutora, NY Slip Op 03583 (2d Dept. 2008)
Practice point: While a real estate broker will have earned a commission by producing a purchaser who is ready, willing and able to purchase at the seller's terms, the mere signing of a contract does not establish that the buyer is financially able to complete the transaction and meet the purchase price.
Case: F. Richard Wolff & Son, Inc. v. Tutora, NY Slip Op 03583 (2d Dept. 2008)
May 12, 2008
May 9, 2008
May 8, 2008
May 7, 2008
An independent contractor's duty to warn.
Practice point: In the absence of a contract for routine or systematic maintenance, an independent contractor or repairer has no duty to install safety devices or to inspect or warn of any purported defects.
Case: Ledesma v. Aragona Mgt. Group, NY Slip Op 03694 (1st Dept. 2008)
Practice point: In the absence of a contract for routine or systematic maintenance, an independent contractor or repairer has no duty to install safety devices or to inspect or warn of any purported defects.
Case: Ledesma v. Aragona Mgt. Group, NY Slip Op 03694 (1st Dept. 2008)
May 6, 2008
May 5, 2008
May 2, 2008
Labor Law § 740
Practice point: This whistleblower's statute prohibits an employer from retaliating against an employee who discloses to a supervisor an employer's activity, policy or practice which is in violation of law, rule or regulation and presents a substantial and specific danger to the public health or safety. To sustain this cause of action, plaintiff must offer proof of an actual violation, and not merely the reasonable belief of a possible violation.
Case: Berde v. North Shore-Long Island Jewish Health System, Inc., NY Slip Op 03409 (2d Dept. 2008)
Practice point: This whistleblower's statute prohibits an employer from retaliating against an employee who discloses to a supervisor an employer's activity, policy or practice which is in violation of law, rule or regulation and presents a substantial and specific danger to the public health or safety. To sustain this cause of action, plaintiff must offer proof of an actual violation, and not merely the reasonable belief of a possible violation.
Case: Berde v. North Shore-Long Island Jewish Health System, Inc., NY Slip Op 03409 (2d Dept. 2008)
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